Opinion
December 20, 1994
Appeal from the Supreme Court, New York County (Jerome Hornblass, J.).
As the People concede, and for the reasons set forth in this Court's opinion in People v Pegeise ( 195 A.D.2d 337), wherein we reversed the conviction of the codefendant, defendant was deprived of a fair trial by the court's adverse inference, reasonable doubt and credibility charges, as well as its discharge of a juror in the absence of counsel and defendant. The court also erred when it failed to instruct the jury that the evidence admitted with respect to the codefendant "is not applicable to, nor is it binding upon" this defendant, and that under no circumstances should the jury "draw from this evidence any inference unfavorable" to this defendant (1 CJI[NY] 4.06).
In light of the aforementioned errors, a new trial is warranted.
Concur — Ellerin, J.P., Ross, Rubin, Nardelli and Williams, JJ.